EXHIBIT 10.02
AMENDMENT NO. 4 TO RECEIVABLES
PURCHASE AGREEMENT
AND
AMENDMENT NO. 2 TO
PERFORMANCE UNDERTAKING
THIS AMENDMENT (this “ Amendment
”) is entered into as of September 30, 2004, among
Ceridian Corporation, a Delaware corporation (“
Ceridian ” or “ Performance Guarantor
”), Comdata Funding Corporation, a Delaware corporation
(“ Seller ”), Comdata Network, Inc., a Maryland
corporation (the “ Servicer ”) (the Servicer
together with Seller, the “ Seller Parties ” and
each a “ Seller Party ”), each Financial
Institution party hereto (the “ Financial Institutions
”), Jupiter Securitization Corporation (“
Jupiter ” and, together with the Financial
Institutions, the “ Purchasers ”), and Bank One,
NA (Main Office Chicago), as agent for the Purchasers (the “
Agent ”).
RECITALS
Each of the parties hereto other than
Ceridian entered into that certain Receivables Purchase Agreement,
dated as of June 24, 2002, as amended by Amendment No. 1
thereto, dated as of June 20, 2003, Amendment No. 2,
dated as of June 17, 2004, and Amendment No. 3, dated as
of August 4, 2004 (such agreement, as so amended, the “
Purchase Agreement ”).
Performance Guarantor entered into
that certain Performance Undertaking dated as of June 24,
2002, in favor of Seller, as amended by Amendment No. 1
thereto, dated as of August 4, 2004 (such undertaking, as so
amended, the “ Performance Undertaking ”).
Ceridian has advised the Agent that
because of the review of certain capitalization and expensing
procedures as disclosed in Ceridian’s press releases dated
July 19, 2004 and August 5, 2004, it has determined that
it will not be able to file with the Securities and Exchange
Commission (“ SEC ”) its quarterly report on
Form 10-Q with respect to the fiscal quarter ending June 30,
2004 within the time period contemplated by Amendment No. 3 to
Receivables Purchase Agreement and Amendment No. 1 to
Performance Undertaking dated as of August 4, 2004, and
Ceridian and the Seller Parties have requested that the Agent and
the Purchasers agree to certain amendments of the Purchase
Agreement and the Performance Undertaking to accommodate such
determination.
Ceridian has further advised the
Agent that the above-described accounting review could
prospectively require Ceridian to restate past financial statement
and related reports, and Ceridian has requested that the Agent and
the Purchasers agree to certain amendments of the Purchase
Agreement and the Performance Undertaking to accommodate any
prospective determination to make any such restatement.
Subject to the terms and conditions
hereof, each of the parties hereto now desires to amend the
Purchase Agreement and the Performance Undertaking as particularly
described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1.
Definitions Used Herein . Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set
forth for such terms in the Purchase Agreement or the Performance
Undertaking, as applicable.
Section 2.
Amendments . Subject to the terms and conditions hereinafter
set forth:
(a) The
definition of “ Material Adverse Effect ”
appearing in Exhibit I to the Purchase Agreement is hereby
amended to add the following new sentence at the end thereof:
It is understood and agreed that none
of the following, individually or in the aggregate, will constitute
a Material Adverse Effect: (a) any delay in filing
Ceridian’s quarterly report on Form 10-Q filed with the SEC
for the fiscal quarter of Ceridian ending June 30, 2004, which
does not extend to a date later than November 9, 2004;
(b) any determination by Ceridian made on or before
November 9, 2004, that a restatement is required of financial
reports or other information previously required to be delivered
under this Agreement with respect to any period ending before
June 30, 2004, as a result of the review of certain
capitalization and expensing procedures at its Human Resources
Solutions business, as disclosed in Ceridian’s press releases
dated July 19, 2004 and August 5, 2004 (the “
Review ”); (c) any such actual restatement which
is furnished to the Agent on or before November 9, 2004, to
the extent such restatement is not asserted in writing by the Agent
on or before November 24, 2004 to be a material restatement of
such previously delivered financial reports or other information;
and (d) any effect of the Review on the financial statements
furnished to the Agent with respect to the fiscal quarter ending
June 30, 2004 which are furnished to the Agent on or before
November 9, 2004, to the extent such effect is not asserted in
writing by the Agent on or before November 24, 2004 to be a
material restatement of such previously delivered financial reports
or other information.
(b) The
definition of “ Material Adverse Effect ”
appearing in Section 1 of the Performance Undertaking is
hereby amended to add the following new sentence at the end
thereof:
It is understood and agreed that none
of the following, individually or in the aggregate, will constitute
a Material Adverse Effect: (a) any delay in filing Performance
Guarantor’s quarterly report on Form 10-Q filed with the SEC
for
2
the fiscal
quarter of Performance Guarantor ending June 30, 2004, which
does not extend to a date later than November 9, 2004;
(b) any determination by Performance Guarantor made on or
before November 9, 2004, that a restatement is required of
financial reports or other information previously required to be
delivered under this Undertaking with respect to any period ending
before June 30, 2004, as a result of the review of certain
capitalization and expensing procedures at its Human Resources
Solutions business, as disclosed in Performance Guarantor’s
press releases dated July 19, 2004 and August 5, 2004
(the “ Review ”); (c) any such actual
restatement which is furnished to the Agent on or before
November 9, 2004, to the extent such restatement is not
asserted in writing by the Recipient (or the Agent, as its
assignee) on or before November 24, 2004 to be a material
restatement of such previously delivered financial reports or other
information; and (d) any effect of the Review on the financial
statements furnished to the Recipient and the Agent with respect to
the fiscal quarter ending June 30, 2004 which are furnished to
the Recipient and the Agent on or before November 9, 2004, to
the extent such effect is not asserted in writing by the Recipient
(or the Agent, as its assignee) on or before November 24, 2004
to be a material restatement of such previously delivered financial
reports or other information.
(c) Sections 5.1(f)
and 9.1(b) of the Purchase Agreement are hereby amended by
inserting the following proviso before the period at the end
thereof:
; provided however, that no
representation or warranty made which is based on or related to any
previously furnished reports or infor
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